Comments on the US Non-Paper for 2016 UNGASS on the World Drug Problem

August 24, 2015

Michael Botticelli

Director, US Office of National Drug Control Policy

The White House

1600 Pennsylvania Ave NW

Washington, DC 20500

William R. Brownfield

Assistant Secretary, Bureau of International Narcotics and Law Enforcement Affairs

US Department of State

2201 C Street, NW

Washington, DC 20037

Dear Director Botticelli and Ambassador Brownfield:

We appreciate the opportunity to comment on the US non-paper prepared as a contribution to the preparatory process for the 2016 UNGASS on the World Drug Problem. This letter offers a number of observations and suggestions based on Human Rights Watch’s work on drugs and human rights; it does not aim to be a comprehensive human rights analysis of the non-paper. We hope our comments will prove useful as negotiations on the outcome document begin, and we encourage you to contact us for further consultations.

1. Criminalization of Personal Drug Use and Possession

We welcome the language in the non-paper recommending, inter alia, that the outcome document “declare that people who use drugs should receive support, treatment and protection, rather than be punished.” As we have argued elsewhere, criminalizing personal drug use per se is problematic in terms of human rights, as it fails to recognize that drug use is ultimately a matter of personal choice and should be treated as an aspect of privacy and personal autonomy, for which criminalization is an unnecessary and disproportionate sanction. It also undermines the right to health.

The decision to use drugs is a matter of personal choice protected by the right to privacy, a cornerstone of respect for personal autonomy and human dignity. Limitations on autonomy and the right to privacy are justified only if they meet the criteria of legitimate purpose, proportionality, necessity, and non-discrimination. Human Rights Watch believes these criteria can rarely if ever be met for the criminalization of personal drug use or possession of drugs for personal use. Different purposes have been advanced to justify the criminalization of drug use. One of those purposes is that of morality: drug use is seen by many as morally dubious or reprehensible, regardless of whether someone is harmed by it. Human rights principles, however, support each individual’s autonomy and right to privacy, which encompasses engaging in conduct that the majority may eschew as immoral or indicative of a weak character. So, for example, human rights jurisprudence leaves no doubt today that majority public morality, if so inclined, cannot justify criminalization of private homosexual conduct by consenting adults. In essence, promoting public morality in the absence of harm to others is not a “legitimate purpose” for the ultimate sanction of criminalization.

Protecting health is a legitimate purpose, as is protecting harm to others that may occur or be risked because of someone’s drug use. But criminalization of drug use to protect someone from harming his or her own health does not meet criteria of necessity or proportionality. Governments have many non-penal measures to reduce harms to someone who uses drugs, including offering substance abuse treatment and social supports. While the state has an important role in protecting health, it should not do so by punishing the person whose health it seeks to protect. Indeed, the negative consequences of criminalization on evidence-based protections such as syringe exchange programs for injection drug users, peer outreach services for health information and linkage to HIV and hepatitis C treatment and other harm reduction measures has been extensively documented by Human Rights Watch and others.

Drug use in some situations causes or threatens to cause serious harm to others, and states have a legitimate interest in protecting third parties from harm resulting from drug use. In such circumstances, states may impose proportionate penal sanctions on harmful behavior that takes place in conjunction with drug use. Thus, a state might choose to criminalize driving a car or flying a plane while under the influence of drugs. It might choose to arrest a person who seriously neglects or abuses a child, where drug dependence is a factor in the neglect or abuse. It might make drug use an aggravating factor in an assault. In such cases the conduct or offense being punished with criminal sanctions is not simply using drugs, but directly causing or risking harm to others while using drugs.

Accordingly, we urge you to make clear that the outcome document should:

Recommend that states decriminalize all personal drug use and possession.

Make clear that not all persons who use drugs need treatment, and not all use of controlled substances amounts to a disorder or medical condition.

2. The Principle of Proportionality in Punishment

We appreciate the non-paper’s statements that “criminal justice tools should adhere to the principle of proportionality…” and urging that the outcome document “encourage the consideration of alternatives to incarceration and other criminal-justice reform for drug-related offenses” and “further encourage the launching of pilot programs, research initiatives, and exchange of information on best practices in order to accelerate criminal justice reforms under the framework of the drug conventions.”

Proportionality is a bedrock principle of criminal justice, and any punishment must adhere to it. Unfortunately, both in the US and abroad, the punishments imposed for drug crimes are often grossly disproportionate to the gravity of the offense and the culpability of the offender. The imposition of the death penalty in several countries (such as Indonesia, Iran, and Singapore) for drug offenses is illegal under international law, and also inherently disproportionate. In the US, lengthy sentences for drug offenses, often imposed pursuant to mandatory minimum sentencing laws, routinely violate the principle of proportionality. In addition, the imposition of any prison sentence for the mere use or possession of drugs for personal use is inherently disproportionate.

We recommend that you make clear that the outcome document should:

Call on all states to ban the imposition of the death penalty for drug offenses.

As noted above, recommend that all states decriminalize personal use and possession of drugs for personal use.

Bring sentences for all drug offenses—including drug trafficking—in line with international standards on proportionality of punishment to the gravity of the offense and the culpability of the offender.

3. Combatting Organized Crime

The non-paper rightly stresses the need to “strengthen states’ capacity in countering transnational criminal organizations, reduce impunity and improve the bonds between citizens and the state.” However, it mistakenly seems to consider only one way of pursuing this goal: by “[r]edoubl[ing] efforts to cooperate against criminal enterprises trafficking in narcotics, chemical precursors and money laundering in the framework of the three UN Drug conventions and the 2009 declaration.”

By restricting its recommendations to cooperation “in the framework of the three UN Drug conventions,” the non-paper incorrectly assumes that doubling down on enforcement of criminal prohibitions on drugs is an effective way to combat organized crime—and, indeed, that it is the only effective or permissible way to do so.

On the contrary, the criminalization of drug production and distribution has dramatically enhanced the profitability of illicit drug markets, which has in turn fueled the growth and operations of criminal organizations and individuals responsible for large-scale violence and human rights abuses. A 2011 analysis by the United Nations Office on Drugs and Crime (UNODC) found that illicit drugs constitute the largest income source for transnational crime, accounting for about half of transnational crime proceeds. Organized criminal groups from Mexico and Colombia to Afghanistan, among others, obtain vast wealth from various facets of the illicit drug trade. As we have repeatedly documented, many such groups and individuals commit serious crimes, including massacres, targeted killings, rape, torture, abductions, extortion, and forced displacement. They may engage in these crimes to perpetuate their control over the drug market or to further a political agenda. The funds from the illegal drug trade often also enable them, through corruption, to evade justice and even secure the complicity of state agents in their crimes.

This was the central point raised by the governments of Mexico, Colombia and Guatemala in their October 2012 joint statement to the UN, asking for a review of the current drug control regime: “Despite the efforts of the international community over decades,” drug use “continues to increase globally, generating substantial income for criminal organizations worldwide,” said the governments, pointing out that those resources enabled criminal organizations “to penetrate and corrupt institutions of the States…. As long as the flow of resources from drugs and weapons to criminal organizations [is] not stopped, they will continue to threaten our societies and governments.” But the current heavy emphasis on criminalization, rather than stopping that flow of resources, seems to be only making the business more profitable. Certainly, many kingpins have been killed or extradited, crops have been fumigated, and shipments have been stopped. Yet, as the Global Commission on Drug Policy has noted, “Apparent victories in eliminating one source or trafficking organization are negated almost instantly by the emergence of other sources and traffickers.”

We are not alone in arguing that criminalization of drug production and distribution may itself be an obstacle to effectively fighting organized crime. As the US Department of Justice noted with respect to marijuana in its August 29, 2013 Guidance Regarding Marijuana Enforcement, a robust system of legalization could further the fight against organized crime by “replacing an illicit marijuana trade that funds illicit criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for.”

Accordingly, we urge you to recommend that the UNGASS outcome document:

Acknowledge that the criminalization of the drug trade may be strengthening organized criminal enterprises, and that alternative models of regulation may assist in the fight against organized crime by reducing the profits available to criminal groups through the illicit drug market.

Recommend that states explore alternatives to the current model of criminalization of drug production and distribution, to reduce the profitability of illicit drug markets, and weaken criminal organizations that often commit abuses.

4. Human Rights and UN Drug Conventions and Bodies

The non-paper does not explicitly mention the human rights costs of existing global drug policies. It also urges that the outcome document “reaffirm commitments to the three UN drug-control conventions.” However, these conventions are premised on an enforcement model that emphasizes criminalization of the drug trade. In country after country, we have documented serious human rights abuses committed in the name of enforcing this model. Moreover, alternative models that reduce the emphasis on criminalization may—as noted in the past section—assist in fighting organized criminal groups that commit abuses in the pursuit of illicit drug profits, corrupt authorities, and undermine democracy and the rule of law.

The non-paper also fails to mention the importance of bringing additional voices to the table in drug policy discussions at the United Nations. Drug policy has, so far, primarily been treated as the domain of the UN Office on Drugs and Crime, the Commission on Narcotic Drugs, and the International Narcotics Control Board. But given the far-reaching implications of drug policy for human rights, other UN bodies, including the Office of the UN High Commissioner for Human Rights, should also be part of these discussions.

We recommend that the US press for the outcome document to:

Explicitly recognize that drug law enforcement has in many cases contributed to serious human rights abuses.

Call on states to take steps to reduce the human rights costs of current policies on drug production and distribution, including by decreasing reliance on criminal regulation in this area, and, where appropriate, adopting new legal and regulatory frameworks and adjusting enforcement practices.

Open a discussion among member states to consider amending the UN Drug Conventions to ensure that they do not prohibit or discourage states from adopting policies, in line with the above, that would enable them to fulfill their human rights obligations and reduce the human rights costs of current policies.

Integrate human rights expertise and representation from major human rights bodies, such as the Office of the UN High Commissioner for Human Rights, into all UN discussions of drug policy, including through use of focal points, designated staff and working groups or task forces as appropriate.

5. Need for New Objectives and Metrics

We believe the UNGASS is a critical opportunity for the international community to set in motion a process to develop a more diverse and inclusive set of objectives and measurements than the ones that have been used in the past few decades. While drug control policy aims to improve the health and welfare of humanity and affects a wide range of multilateral objectives, current drug control policies are assessed primarily via indicators of the level of supply and consumption of illicit drugs. Moreover, current measurements tend to emphasize processes (for example, the amount of illicit drugs seized, or numbers of consumers or dealers arrested) over policy-relevant outcomes (such as reductions in crime, or improvements to health).

Broadening the package of drug policy objectives through the inclusion of well-designed outcome indicators will better enable member states to assess the diverse impacts of drugs and drug control policies in their countries and internationally. Crucially, expanding the set of drug policy indicators to include those that measure health, development and security outcomes at the local, national, regional, and international levels would also facilitate the implementation of more targeted and effective drug control policies and interventions.

We therefore recommend that the US press for the outcome document to:

Commit to establishing a technical expert review group to develop recommendations for a comprehensive set of drug control policy targets and relevant indicators. The proposed targets and indicators could be considered for adoption by the Commission on Narcotic Drugs at its 10 year review of progress in 2019. All relevant UN agencies including human rights experts, Member States, the scientific community, and civil society should participate in this process.

6. Controlled Medicines

We welcome the inclusion of a section on availability of controlled substances for medical and scientific purposes in the non-paper, particularly given the concerns in the US regarding overdose deaths associated with strong analgesics. As you know, this administration’s support has been of great importance in firmly placing this issue on the international drug policy agenda.

Along with other organizations working in the field of palliative care, we hope that the 2016 UNGASS will go beyond just an acknowledgement of the challenges with access to controlled medicines and prevention of their misuse and diversion.

We urge you to press for the UNGASS outcome document to:

Set in motion a coordinated UN-wide response to address both the inadequate availability of controlled medicines and their misuse and diversion through a multifaceted approach that includes balanced regulation and control, education and training, and overall health system strengthening.

Thank you for the opportunity to provide feedback. We look forward to working with the US government throughout the preparations for the UNGASS and at the special session itself.

Sincerely,

Maria McFarland Sánchez-Moreno Diederik Lohman

Co-Director, US Program Associate Director, Health and Human Rights

Human Rights Watch Human Rights Watch

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